Thoughts from the interface of science, religion, law and culture

After spending several years touring the country as a stand up comedian, Ed Brayton tired of explaining his jokes to small groups of dazed illiterates and turned to writing as the most common outlet for the voices in his head. He has appeared on the Rachel Maddow Show and the Thom Hartmann Show, and is almost certain that he is the only person ever to make fun of Chuck Norris on C-SPAN.

EVENTS

FBI to Review 2000 Cases

Remember all those convictions that the DOJ discovered were at least partly based on hair analysis that had been royally screwed up by an FBI crime lab? The Innocence Project has apparently convinced the DOJ and the FBI to review all of those cases to determine whether new trials are warranted.

Today the Innocence Project, the National Association for Criminal Defense Lawyers (NACDL) and its partners announced a groundbreaking and historic agreement with the FBI and the Department of Justice (DOJ) to review more than 2,000 criminal cases in which the FBI conducted microscopic hair analysis of crime scene evidence. The agencies agreed to undertake the review after three men who had served lengthy prison sentences were exonerated by DNA testing in cases in which three different FBI hair examiners provided testimony which exceeded the limits of science and contributed to their wrongful convictions. The review will focus on specific cases in which FBI Laboratory reports and testimony included statements that were scientifically invalid…

Because of the importance attached to these cases, the DOJ has agreed, for the first time in its history, not to raise procedural objections, such as statute of limitations and procedural default claims, in response to the petitions of criminal defendants seeking to have their convictions overturned because of faulty FBI microscopic hair comparison laboratory reports and/or testimony. This agreement will help ensure that defendants will not have any wrongful conviction claims dismissed before being reviewed by a court on the merits. The government also agrees to directly notify the defendants and their lawyers in cases where an error is identified and to offer free DNA testing in the cases where an error was identified in the analysis or testimony and there is either a court order or a request for testing by the prosecution.

“The government’s willingness to admit error and accept its duty to correct those errors in an extraordinarily large number of cases is truly unprecedented. It signals a new era in this country that values science and recognizes that truth and justice should triumph over procedural obstacles,” said Peter Neufeld, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. “Unfortunately hair analysis is only one of many flawed forensic practices that are still used that pose the threat of infecting criminal trials across the nation. We need leadership in Washington to ensure scientific rigor and greater oversight over forensics to prevent these miscarriages of justice.”

“We hope that the actions taken by the FBI and DOJ will serve as a model for state law enforcement and crime laboratories throughout the country to respect ethical obligations to reverse wrongful convictions when learning about improper evidence,” said Norman Reimer, Executive Director of NACDL.

Before DNA testing was used in criminal trials, prosecutors throughout the country routinely relied on microscopic hair comparison analysis, often provided by the FBI, to link a criminal defendant to a crime. The practice was deemed “highly unreliable” in the 2009 National Academy of Science report on forensic science, Strengthening Forensic Science in the United States: A Path Forward. As part of the agreement announced today, the agencies acknowledge that there are significant limitations on the probative value of hair analysis because “the size of the pool of people who could be included as a possible source of a specific hair is unknown.” The agencies further have agreed that “an examiner report or testimony that applies probabilities to a particular inclusion of someone as a source of a hair of unknown origin cannot be scientifically supported.”

“It is possible to conduct hair microscopy and find similarities among various samples. But it appears that in many cases the FBI analysts were overstating the significance of these similarities, often leaving juries with the false impression that a hair recovered from the crime scene must have come from the defendant and could not have come from anyone else,” said Neufeld. “The government is now acknowledging that this was wrong and that the science does not support such conclusions.”

This is really, really important. The Obama administration has had an abysmal record when it comes to criminal justice issues, but this is a very big deal. We must retool our criminal justice system and make sure that innocence actually matters.

Comments

In the O. J. Simpson trial in 1995, an FBI examiner, Douglas Dietrich, a hair and fiber expert, was greatly constrained as to what he could testify to. All he was allowed to say that hair samples from the crime scene were from an Afro-American and were consistent with hair samples obtained from Simpson. It would appear that the rules of evidence in other states and in federal trials are less restrictive then in California.

The unscientific basis of hair comparison analysis is just the tip of the CSI iceberg. The PBS Nova episode Forensics on Trial reveals that there has been little scientific groundwork done to establish a proper baseline for forensic crime-scene analysis. From the Nova website:

There is a startling gap between the glamorous television world of “CSI” and the gritty reality of the forensic crime lab. With few established scientific standards, no central oversight, and poor regulation of examiners, forensics in the U.S. is in a state of crisis. In “Forensics on Trial,” NOVA investigates how modern forensics, including the analysis of fingerprints, bite marks, ballistics, hair, and tool marks, can send innocent men and women to prison—and sometimes even to death row. Shockingly, of more than 250 inmates exonerated by DNA testing over the last decade, more than 50 percent of the wrongful convictions stemmed from invalid or improperly handled forensic science. With the help of vivid recreations of actual trials and cases, NOVA will investigate today’s shaky state of crime science as well as cutting-edge solutions that could help investigators put the real criminals behind bars.

“Because of the importance attached to these cases, the DOJ has agreed, for the first time in its history, not to raise procedural objections…”

Had I been asked, I would have guessed the FBI would have long since fixed its crime lab procedures. It was well before 2009 that a spate of misconduct at the lab came to light. But it seems “The buck stops here” is an outmoded relic of the Truman administration.

There were investigations of the FBI lab going back into the mid 1990s In particular, the head of the chemical investigation division of the Lab, Roger Martz, was heavily criticized for his testimony in the Simpson case, as well as other problems found by an international investigative team. This occurred in 1995! Martz was subsequently removed from his position as a result of the investigation.